Loewenstein v. Biernbaum

15 F. Cas. 782, 8 W.N.C. 163, 1880 U.S. App. LEXIS 2862

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: February 27, 1880
• Status: Published

Opinion

THE COURT

(BUTLER, District Judge, orally).

When the motion to issue the writ was made, I felt a doubt as to my power to issue it, founded upon the first sentence of section 717, Rev. St. U. S. 1873. It may be said that the district judge, though sitting as circuit judge, is not designated by the act, which defines the power of the court to issue the writ. I will not say that this doubt would have prevented my issuing it, but I may say that I had a shadow of doubt as to my authority. I issued the writ, however, without adverting to the second sentence of the same section, though I had the act before me, upon the authority of the case before Cadwalader, J. It is now frankly conceded by counsel that the language of the act does not authorize the writ. This renders it unnecessary to examine the merits of the case. It may be, indeed, doubted whether if the court had jurisdiction, the case is one which calls for this extraordinary remedy. The defendant here is alleged to have rendered himself liable to the plaintiff, by aiding Biern-baum, the plaintiff’s creditor, to fraudulently convey his property. But Mausbach is not represented as now holding any of the defendant’s property, it being averred that he has conveyed that of which he is alleged to have fraudulent possession, to Mrs. Biern-baum. The writ issues where the plaintiff has a plain demand against the defendant. It may be that the property in controversy will be recovered by the plaintiff, and then his claim against Mausbach would be but nominal. I do not put the decision upon this ground, but merely say that the case would be one of great doubt, even if the question of jurisdiction were not decisive. Writ quashed.

KOTE. As to the want of power of a U. S. district judge to issue a writ of ne exeat, see Gernon v. Borealine [Case No. 5.307], In the early history of Pennsylvania, writs of ne ex-eat provincia were frequent. Rawle, Eq. 40, 44. The subsequent instances in which it has been issued by a state court are very few. It is believed there are but two reported cases, viz.: Torlade v. Barrozo, 1 Miles. 385, and Dransfield v. Dransfield. 6 Phila. 143. In the latter case it was said that “our act to abolish imprisonment for debt confines this class of cases within a very narrow compass.” See Brightly, Eq. Jur. p. Oil; 3 Daniel), Ch. Prac. 1S01, note. Por cases in New York and other states, see note to Adams. Eq. *360. For form of writ, affidavit, and order, see 3 Daniell, Ch. PI. & Prac. pp. 1812, 2180, 2326.